Defendants contend that they are entitled to judgment as a matter of law on plaintiff's claims challenging their implementation of IDEA because plaintiff has failed to exhaust state administrative remedies. Plaintiff responds that the exhaustion requirement is inapplicable here because the state administrative remedies could not provide the relief plaintiff seeks. Plaintiff therefore contends that the action falls within the futility exception to the exhaustion doctrine. Accordingly, the first issue the Court must address in deciding this motion is whether review of certain of the plaintiff's claims is barred by the exhaustion doctrine. The Court will then address the merits of any of plaintiff's claims which fall within the futility exception, including those claims the SED concedes fall within this exception.

It is, however, well recognized that the exhaustion requirement will be excused in cases where pursuit of administrative remedies would be futile, because the agency was acting in violation of IDEA or would be unable to remedy the alleged injury. See id. The Second Circuit has held that where a plaintiff challenges state regulations as violative of IDEA, and the administrative agency is bound to uphold these regulations, then exhaustion of administrative remedies would be futile, and the plaintiff could proceed directly to federal court. See Heldman, 962 F.2d at 159. Plaintiff cites Heldman in support of his position that the futility exception to the exhaustion doctrine applies in the instant case.

Finally, the Court notes that federal common law
*fn1"
recognizes that neither appointment and nor payment of an individual by an entity are the determinative factor in deciding whether that person is an employee of the entity. See Melancon v. Amoco Production Co., 834 F.2d 1238, 1244-45 (5th Cir. 1988). The determinative factor is the entity's ability to exert control over the individual. See id. In this action plaintiff fails to demonstrate a single issue of fact indicating that section 4404 allows defendants to exert control over the IHOs as employees.

Based upon the foregoing, the Court finds that this section is in keeping with IDEA's due process requirements as a matter of law. Thus, the Court grants the defendants' motions for summary judgment on this claim as well.

CONCLUSION

It is HEREBY ORDERED that pursuant to the above analysis defendants' motions for summary judgment are GRANTED entirely. SO ORDERED.

SIGNED this 31st day of March, 1994.

Joanna Seybert

UNITED STATES DISTRICT JUDGE

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